Citation Nr: 9817531
Decision Date: 06/08/98 Archive Date: 06/22/98
DOCKET NO. 95-37 375 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for traumatic arthritis
of the shoulders.
2. Entitlement to service connection for cataracts as
secondary to avitaminosis.
3. Entitlement to service connection for hearing loss of the
left ear.
4. Whether new and material evidence has been submitted to
establish service connection for hearing loss of the right
ear.
5. Whether new and material evidence has been submitted to
establish service connection for esophageal dysfunction.
6. Entitlement to an increased rating for posttraumatic
stress disorder (PTSD), currently evaluated as 50 percent
disabling.
7. Entitlement to an increased rating for peripheral
neuropathy of the left lower extremity, currently
evaluated as 20 percent disabling.
8. Entitlement to an increased rating for peripheral
neuropathy of the right lower extremity, currently
evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: American Ex-Prisoners of War,
Inc.
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Joseph P. Gervasio, Counsel
INTRODUCTION
The veteran served on active duty from June 1940 to May 1949.
He was a prisoner of war of the Japanese Government from May
1942 to September 1945.
This case comes to the Board of Veterans’ Appeals (Board) on
appeal of a February 1995 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veterans Affairs (VA).
Review of the record shows that service connection for
hearing loss of the right ear was denied by the RO in a
November 1984 decision. Service connection was not denied
for hearing loss in the left ear. Under these circumstances,
the Board has determined that the issues must be addressed
separately. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
Regarding the issue of service connection for an esophageal
disorder, it is noted that service connection was previously
denied for a gastrointestinal disorder in June 1982. The
veteran was notified of his appellate rights, but did not
file a timely appeal. The claim for service connection for
an esophageal disorder is considered to be part and parcel of
the previous claim. Therefore new and material evidence is
needed to reopen the claim and the Board must first determine
whether such evidence has been submitted. McGraw v. Brown, 7
Vet. App. 138 (1994).
Regarding the issue of service connection for cataracts as a
result of avitaminosis, it is noted that service connection
for an eye disorder was denied by the RO in November 1957 and
June 1982. However, as optic atrophy associated with
malnutrition is a disease that is associated by regulation to
former prisoners of war, this claim is to be reviewed on a de
novo basis. Pena v. Brown, 5 Vet. App. 279 (1993).
Regarding the issue of an increased rating for PTSD, it is
noted that by rating decision in December 1996, the RO
increased the evaluation for this disorder from 30 percent to
50 percent disabling, effective in May 1994 the date of the
veteran’s claim for an increased rating. The issue is,
therefore that of entitlement to a rating in excess of 50
percent. AB v. Brown, 6 Vet. App. 35 (1993).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has traumatic arthritis of both
shoulders that is the direct result of beatings he endured
while a prisoner of war of the Japanese during World War II.
He also asserts that he has hearing loss and an esophageal
condition resulting from those experiences and that he has an
eye disorder, claimed as cataracts, that has developed as a
result of the avitaminosis he suffered during that time.
Finally, he contends that his PTSD and bilateral lower
extremity neuropathy are more disabling than currently
evaluated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claims for service
connection for traumatic arthritis of the shoulders,
cataracts and hearing loss of the left ear are not well-
grounded, and the appeal as to these issues is denied. It is
also the decision of the Board that new and material evidence
has not been submitted to reopen a claim for hearing loss of
the right ear or a claim for, an esophageal condition, and
that the preponderance of the evidence is against the claims
for increased ratings for PTSD and bilateral peripheral
neuropathy of the lower extremities.
FINDINGS OF FACT
1. Chronic bilateral traumatic arthritis of the shoulders is
not currently demonstrated.
2. There has been no establishment of an etiologic nexus
between currently demonstrated cataracts and service or
any avitaminosis that developed as the result of service.
3. There has been no establishment of an etiologic nexus
between currently demonstrated left ear hearing loss and
service.
4. Service connection for hearing loss of the right ear and a
gastrointestinal disorder was denied by the RO in a
November 1984 rating action. The veteran was notified of
this action and of his appellate rights, submitted a
notice of disagreement, but failed to file a timely appeal
in response to the statement of the case that was
furnished.
5. Since the November 1984 decision denying service
connection for right ear hearing loss, the additional
evidence, not previously considered, is cumulative and
does not raise a reasonable possibility of a change in the
prior outcome.
6. Since the November 1984 decision denying service
connection for a gastrointestinal disorder, the additional
evidence, not previously considered, is cumulative and
does not raise a reasonable possibility of a change in the
prior outcome such that service connection could be
established for an esophageal disorder.
7. PTSD is currently manifested by depression and anxiety
that are exacerbating his physical problems, memory loss,
moderate social and mild vocational impairment.
8. Peripheral neuropathy of the lower extremities is
manifested by an intermittently ataxic gait, with poor
tandem walking and diminution of gait ability; and sensory
loss to pin, touch, proprioception, vibration and
temperature in a stocking distribution that is productive
of moderate paralysis of the sciatic nerve in each
extremity.
CONCLUSIONS OF LAW
1. The veteran has not submitted evidence of a well-grounded
claim regarding service connection for bilateral traumatic
arthritis of the shoulders. 38 U.S.C.A. §§ 1110, 1131,
5107 (West 1991 & Supp. 1995); 38 C.F.R. § 3.303 (1996).
2. The veteran has not submitted evidence of a well-grounded
claim regarding service connection for cataracts.
38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1995);
38 C.F.R. § 3.303 (1996).
3. The veteran has not submitted evidence of a well-grounded
claim regarding service connection for left ear hearing
loss. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp.
1995); 38 C.F.R. § 3.303 (1996).
4. The additional evidence submitted subsequent to the
November 1984 decision of the RO, which denied service
connection for hearing loss of the right ear, is not new
and material; thus, the claim for service connection for
this disability is not reopened, and the November 1984 RO
decision is final. 38 U.S.C.A. §§ 5108, 7105 (West 1991 &
Supp. 1995); 38 C.F.R. § 3.156 (1996).
5. The additional evidence submitted subsequent to the
November 1984 decision of the RO, which denied service
connection for a gastrointestinal disorder, is not new and
material; thus, the claim for service connection for an
esophageal disorder is not reopened, and the November 1984
RO decision is final. 38 U.S.C.A. §§ 5108, 7105 (West
1991 & Supp. 1995); 38 C.F.R. § 3.156 (1996).
6. The criteria for a rating in excess of 50 percent for PTSD
have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp.
1995); 38 C.F.R. § 4.130, Code 9411 (1996).
7. The criteria for a rating in excess of 20 percent for
peripheral neuropathy of the right lower extremity have
not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp.
1995); 38 C.F.R. § 4.124a, Code 8520 (1996).
8. The criteria for a rating in excess of 20 percent for
peripheral neuropathy of the left lower extremity have not
been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1995);
38 C.F.R. § 4.124a, Code 8520 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection for Traumatic Arthritis of the
Shoulders,
Cataracts and Hearing Loss of the Left Ear
The threshold question to be answered concerning these issues
is whether or not the veteran has presented evidence of well-
grounded claims; that is, ones that are plausible,
meritorious on their own, or capable of substantiation.
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78
(1990). If he has not presented such claims, his appeal must
fail and there is no duty on the VA to assist him in the
development of his claims because such additional development
would be futile. Id.
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular disease or injury resulting in
current disability was incurred during active service or, if
preexisting active service, was aggravated therein.
38 U.S.C.A. §§ 1110, 1131. If a condition noted during
service is not shown to be chronic, then generally, a showing
of continuity of symptoms after service is required for
service connection. 38 C.F.R. § 3.303(b).
In order for a claim to be well grounded, there must be
competent evidence of current disability, evidence of the
incurrence or aggravation of a disease or injury during
service, and a nexus between the in-service injury or disease
and the current disability. That means that for a claim of
service connection, there must be evidence of a current
disability, disease or injury during service and a link
between the two. Furthermore, the evidence needed to
establish service connection for any particular disability,
must be competent. That is, an injury during service may be
verified by medical or lay witness statements; however, the
presence of a current disability requires a medical
diagnosis; and, where an opinion is used to link the current
disorder to a cause or symptoms during service, a competent
opinion of a medical professional is required. Caluza v.
Brown, 7 Vet. App. 498 (1995).
It is noted that the veteran and his wife testified at a
hearing at the RO in May 1996. The testimony concerning these
issues centered around his belief that they are related to the
experiences to which he was subjected while a prisoner of war
of the Japanese. While this testimony has been considered, it
is noted that the veteran and his wife are layman, and, as
such, are not competent to give an opinion requiring medical
knowledge such as involved in making diagnoses or explaining
the etiology of a condition. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992).
Although where claims are not well grounded VA does not have
a statutory duty to assist a claimant in developing facts
pertinent to his claim, VA may be obligated under
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed
to complete his application. This obligation depends upon
the particular facts of the case and the extent to which the
Secretary of the Department of Veterans Affairs has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995).
In this case, the RO fulfilled its obligation under section
5103(a) in the Statement of the Case in which the appellant
was informed of the reasons of the denial of his claim.
There is no indication of record that there is evidence
pertinent to this case that has not yet been obtained.
Furthermore, by this decision the Board is informing the
veteran of the evidence which is lacking and that is
necessary to make his claim well grounded.
A. Traumatic Arthritis of the Shoulders
The veteran has claimed service connection for traumatic
arthritis of the shoulders. It is noted that service
connection has previously been established for traumatic
arthritis of the lumbar and cervical spine and that traumatic
arthritis is a disease for which an open-ended presumption
has been established as being specific to former prisoners of
war. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307,
3.309 (1996). Simply put, this means that if the veteran
should manifest traumatic arthritis of the shoulders to a
compensable degree, he would be eligible for compensation for
this disorder. However, for a claim to be plausible, current
disability must be demonstrated. Rabideau v. Derwinski,
2 Vet. App. 141 (1992). X-ray studies of the shoulders
conducted in June 1996 revealed no evidence of acute bony or
joint space abnormality. The veteran does not have arthritis
of his shoulders. Under these circumstances, the claim is
denied.
B. Cataracts as the Result of Avitaminosis
The veteran was a prisoner of war of the Japanese government
for well over 3 years. Service medical records show that he
suffered from several vitamin deficiency diseases, including
beriberi, malnutrition and avitaminosis, during that time.
These diseases, including optic atrophy associated with
malnutrition, are among those for which open-ended
presumptions have been established. 38 U.S.C.A. §§ 1101,
1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (1996). However,
cataracts of the eyes are not one of the listed diseases.
Therefore service connection based strictly on the veteran’s
prisoner of war status is not warranted.
Nevertheless, service connection could still be granted if it
is found that the veteran has submitted a plausible claim and
the evidence shows that the development of cataracts is
related to service. Review of the medical evidence of record
shows no manifestations of cataracts during service or until
many years thereafter. VA examiners, who examined the
veteran in June 1996, were requested to render an opinion on
the possibility of any relationship between the development
of cataracts and the veteran’s experiences, including those
as a prisoner of war, during service. Two of the examining
physicians responded to the question. The first stated that
a relationship between cataracts and avitaminosis cannot be
verified by consulting medical texts treating malnutrition
and vitamin deficiencies. He went on to state that
nutritional inadequacy with subnormal vitamin intake history
is not associated with the etiology of senile cataracts. The
second, who conducted a specialist eye examination, stated
that the veteran had a history of avitaminosis, but there was
no evidence of ocular surface disease that would be the most
common complication of vitamin A deficiency. The veteran had
early cataracts which were not visually significant and “are
noted related to his vitamin deficiency.” The cataracts
appeared to be typical lens changes for his age.
The examination reports when reviewed as a whole, do not show
any relationship between the development of cataracts and
service. The first examiner states that there is no basis
for finding such a relationship. The second examiner
indicated that the veteran did not have the most common
complication of avitaminosis and that the cataracts appeared
to be typical lens changes for a person of the veteran’s age.
The sentence indicating a “noted” relationship between
cataracts and vitamin deficiency, therefore, appears to be a
typographical error and not a medical opinion establishing a
nexus between the two. As no medical nexus has been
established, the claim is not plausible and must be denied.
C. Hearing Loss of the Left Ear
The service medical records do not show that the veteran had
hearing loss in the left ear while on active duty. The
earliest demonstration of hearing loss of the left ear is
shown on an audiometric evaluation conducted by a private
facility in May 1982. That test showed a decibel level of 45
at 4000 hertz in the left ear. "Audiometric testing measures
threshold hearing levels (in decibels (dB)) over a range of
frequencies (in Hertz (Hz); the threshold for normal hearing
is from 0 to 20 dB, and higher threshold levels indicate some
degree of hearing loss." Hensley v. Brown, 5 Vet. App. 155,
157 (1993). Subsequent audiometric evaluations performed by
VA continued to show the presence of a hearing loss in the
left ear. However, there is no indication that the condition
is related to service.
The Board notes that the veteran essentially contends that
his hearing loss was incurred while in combat with the enemy.
In such cases, the nature and circumstances of his service
must be taken into account when evaluating the evidence.
38 U.S.C.A § 1154; Smith v. Derwinski, 2 Vet. App. 137
(1992). However, where the determinative issue involves
medical causation or a medical diagnosis, competent medical
evidence to the effect that the claim is “plausible” or
“possible” is required. Grottveit. v. Brown, 5 Vet. App.
91 (1993). Under these circumstances, as there is no
affirmative evidence establishing a relationship between
service and the development of hearing loss many years later,
the claim is not well grounded and must be denied.
II. New and Material Evidence for Right Ear Hearing Loss
and an Esophageal Disorder
Service connection for hearing loss in the right ear and a
gastrointestinal disorder was previously denied by the RO in
a November 1984 rating decision. The veteran submitted a
notice of disagreement and a statement of the case was
issued. He did not file a timely appeal to this
determination. The veteran has once again claimed service
connection for hearing loss in the right ear and for an
esophageal disorder that is considered to have been part of
his previous claim for service connection for a
gastrointestinal condition. In such cases, it must first be
determined whether or not new and material evidence has been
submitted such that the claim may now be reopened.
38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet. App.
140 (1991). For evidence to be deemed new, it must not be
cumulative or redundant; to be material, it must be relevant
and probative to the issue at hand and, when viewed in the
context of all the evidence, it must raise a reasonable
possibility of a change in the prior adverse outcome.
38 C.F.R. § 3.156; Colvin v. Derwinski, 1 Vet. App. 171
(1991).
Evidence of record at the time of the prior denial included
audiometric studies that first showed a hearing loss in the
right ear in 1982 and VA outpatient treatment records that
showed a history of esophageal stricture in 1982. A copy of
an esophageal study that, while undated was received with the
1982 VA outpatient treatment records, showed evidence of
possible esophageal spasm at the level of the
cricopharyngeus.
The evidence submitted by the veteran in connection with his
application to reopen these claims consists primarily of
records of treatment many years after service and recently
conducted VA examinations. This evidence does not indicate
in any way that the conditions are service related. Such
evidence is not new and material evidence upon which the
claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993).
The veteran and his wife also testified at a hearing at the
RO in May 1996. However, as laymen, they are not competent
to to give an opinion requiring medical knowledge such as
involved in making diagnoses or explaining the etiology of a
condition that would suffice to reopen the claim. Moray v.
Brown, 5 Vet. App. 211 (1993). Under these circumstances,
the applications to reopen the claim for service connection
for right ear hearing loss and for an esophageal disorder are
denied.
III. Increased Ratings
It is initially noted that these claims are well grounded;
that is, they are not inherently implausible and the facts
relevant to these issues on appeal have been properly
developed and the statutory obligation of the VA to assist
the veteran in the development of his claim has been
satisfied. 38 U.S.C.A. § 5107(a).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate diagnostic codes identify the various disabilities.
Although regulations require that, in evaluating a given
disability, the disability be viewed in relation to its whole
recorded history, 38 C.F.R. §§ 4.1, 4.2, the present level of
disability is of primary concern. Francisco v. Brown, 7 Vet.
App. 55 (1994). In evaluating the veteran’s claims, all
regulations which are potentially applicable through
assertions and issues raised in the record have been
considered, as required by Schafrath v. Derwinski, 1 Vet.
App. 589 (1991).
A. PTSD
Service connection was established for an anxiety disorder,
with depression and PTSD, was granted by the RO in a June
1982 rating decision. A 30 percent rating was assigned at
that time. The rating was increased to its present 50
percent by rating decision of the RO in December 1996
It is noted that on November 7, 1996, new regulations
governing the criteria for evaluations of PTSD took effect.
The Board will evaluate the veteran’s claim under both sets
of criteria to determine which, if either, would be of
greater benefit to the veteran. Where the law or regulation
changes after the claim has been filed, but before the
administrative or judicial process has been concluded, the
version most favorable to the veteran applies. Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
An examination was conducted by VA in June 1994. At that
time, the veteran complained that he lost his temper easily
and had frequent nightmares from which he woke up shaking and
sweating. The dreams were of fighting the Japanese and of
the incredible things, such as beheadings and executions,
that occurred while he was incarcerated in a prisoner of war
camp. He described his spirits as being depressed and, at
times, thought that it would be better if he were out of the
world. He and his wife stayed away from people. He worked
as a bookkeeper and accountant until 1984 and still worked in
this capacity two hours per day. He had a brief period of
treatment in 1992 when he was given Valium. On mental status
evaluation, he was neatly dressed, alert, pleasant, and
cooperative. He made good eye contact. His speech was to
the point. He did not attempt to dramatize or embellish his
remarks. He appeared to be concerned about his situation,
but not overtly depressed. There were no signs of psychotic
phenomena. Memory and orientation were intact, insight and
judgment were only fair. The diagnosis was PTSD.
A psychiatric examination was conducted by VA in July 1996.
The veteran complained that he was very nervous and depressed
and that he had memory problems. He avoided crowds and did
not associate with anybody unless they were veteran’s family
or former prisoners of war. He became nervous if he heard
loud noises or thunder. He reportedly did not sleep very
well and had night sweats and nightmares about the prisoner
of war camp and the “hell ships.” He flew off the handle
easily and became aggressive, but had never been charged with
assaulting anyone. He had difficulty with his memory. On
mental status examination, he was alert and adequately
oriented. He was cooperative and pleasant most of the time,
but tended to display a defensive demeanor at times. Mood
was mildly depressed, but he reacted appropriately to humor.
He displayed rationalization of negative affect in terms of
external factors and his insight into his emotional condition
was marginal. His judgment appeared to be adequate. Simple
mental calculation skills were adequate and abstract verbal
reasoning appeared to be average. Memory functions were
mildly deficient, more noticeable for immediate recall than
for remote recall. The impression was of mild memory
deficits and problems of depression and anxiety, with likely
exacerbation by threatening associations to his experiences
as a prisoner of war. As a result of his emotional problems,
his social functioning appeared to be impaired to a moderate
degree and his vocational functioning was impaired to a mild
degree. The diagnoses were PTSD, moderate; dysthymic
disorder, mild; depression and anxiety affecting multiple
physical symptoms; alcohol abuse, possible alcohol
dependence; and amnestic disorder, not otherwise specified,
mild. His GAF score was 56, which was further explained as a
51 for moderate difficulty with social functioning and a 61
for vocational functioning.
A 50 percent evaluation is warranted for PTSD where the
ability to establish or maintain effective or favorable
relationships with people is considerably impaired and where
the reliability, flexibility, and efficiency levels are so
reduced by reason of psychoneurotic symptoms as to result in
considerable industrial impairment.
A 70 percent evaluation requires that the ability to
establish and maintain effective or favorable relationships
with people be severely impaired and that the psychoneurotic
symptoms be of such severity and persistence that there is
severe impairment in the ability to obtain or retain
employment. 38 C.F.R. § 4.132, Code 9411. (effective prior
to November 7 1996.)
A 50 percent rating is warranted for occupational and social
impairment with reduced reliability, and productivity due to
such symptoms as: flattened affect; circumstantial,
circumlocutory or stereotyped speech; panic attacks more than
once a week; difficulty in understanding complex commands;
impairment of short- and long-term memory (e.g., retention of
only highly learned material, forgetting to complete tasks);
impaired judgment; impaired abstract thinking; disturbances
of motivation and mood; and difficulty in establishing and
maintaining effective work and social relationships. A 70
percent rating is warranted for occupational and social
impairment, with deficiencies in most areas, such as work,
school family relations, judgment, thinking or mood, due to
such symptoms as: suicidal ideations; obsessional rituals
which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or worklike
settings); inability to establish and maintain effective
relationships. 38 C.F.R. § 4.130, Code 9411 (effective
November 7, 1996).
The veteran’s psychiatric disorder is manifested by
depression and anxiety that are exacerbating his physical
problems, memory loss, moderate social and mild vocational
impairment. However, he is able to work 2 hours per day and
he does not appear to have any deficit in his family
relationships. It was noted that he easily became
aggressive, but there is not indication that he has periods
of violence. He stated that he sometimes felt that he would
be better off “out of this world,” but had not true
suicidal ideation. The veteran’s judgment and cognitive
function appeared to be adequate to the examiners. Under
these circumstances, the Board does not find that the
psychiatric manifestations meet the criteria for a 70 percent
rating under either set of regulations. The disability is
not productive of severe social and industrial impairment.
It has not been demonstrated that the symptoms cause
deficiencies in most areas of social and occupational
functioning. Therefore, an increased rating is not
warranted.
B. Bilateral Lower Extremity Peripheral Neuropathy
Service connection for peripheral neuropathy of each lower
extremity, secondary to vitamin deficiency as a prisoner of
war was established by rating decision in February 1995. A
20 percent rating was assigned for each lower extremity.
An examination was conducted by VA in July 1994. At that
time, it was noted that the veteran had been diagnosed as
having beriberi following his release from a prisoner of war
camp in 1945. He complained of persistent tingling,
numbness, burning and lack of sensation in both feet, which
had not changed over the last number of years. Neurologic
examination showed no motor deficit, with good strength and
no drift or atrophy. Muscle tone was normal. Reflexes were
1+ in the upper extremities, but absent in both lower
extremities. Gait was ataxic, with poor tandem walking.
There was a diminution in gait ability with lack of visual
stimulation. Sensory examination revealed a stocking loss of
pin, touch, proprioception, vibration and temperature
sensation. Romberg test was positive. The diagnosis was
chronic lower extremity sensory neuropathy secondary to
beriberi, with residual diminution in sensory function and a
proprioceptive ataxic gait.
A special prisoner of war examination was conducted by VA in
July 1996. On neurological examination, gait was normal.
Patellar reflexes were plus one, bilaterally, but Achilles
reflexes were not elicited. Vibration and position senses
were intact. There was diminished sensation to light touch
and pin to the tips o the fingers and toes. There was no
muscle atrophy. There were no fasciculations, tremors or
muscle weakness. The pertinent examination was peripheral
neuropathy.
The veteran’s peripheral neuropathy has been rated on
paralysis of the sciatic nerve. For compete paralysis of
this nerve, where the foot dangles and drops, no active
movement of the muscles below the knee is possible and where
flexion of the knee is weakened or lost, an 80 percent rating
is warranted; for severe incomplete paralysis, with marked
muscular atrophy, a 60 percent rating is warranted; for
moderately severe incomplete paralysis, a 40 percent rating
is warranted; for moderate incomplete paralysis, a 20 percent
rating is warranted. 38 C.F.R. § 4.124a, Code 8520.
The term “incomplete paralysis” indicates a degree of lost
or impaired function substantially less than the type
pictured for complete paralysis given with each nerve. When
the involvement is wholly sensory, the rating should be for
the mild, or at most, the moderate degree. The following
ratings for the peripheral nerves are for unilateral
involvement; when bilateral combine with application of the
bilateral factor. 38 C.F.R. § 4.124a.
The veteran’s peripheral neuropathy is predominately sensory
in nature. While an ataxic gait was noted in 1994, his gait
was normal in 1996. He does have an absent ankle jerk, but
no muscle atrophy has been noted. Under these circumstances,
the neuropathy is not shown to be productive of more than
moderate impairment of each lower extremity. Therefore, a
rating in excess of 20 percent for each leg is not warranted.
ORDER
The claims for traumatic arthritis of the shoulders,
cataracts, or left ear hearing loss are denied. New and
material evidence has not been submitted to reopen a claim
for service connection for right ear hearing loss or an
esophageal disorder. Increased ratings for PTSD, peripheral
neuropathy of the right lower extremity, or peripheral
neuropathy of the left lower extremity are denied.
M. W. GREENSTREET
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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